Legal History Commons^™

Theorizing American Freedom, Anthony O'Rourke

Michigan Law Review

Some intellectual concepts once central to America's constitutional discourse are, for better and worse, no longer part of our political language. These concepts may be so alien to us that they would remain invisible without carefully reexamining the past to challenge the received narratives of America's constitutional development. Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our past that are no longer reflected in the Constitution's …

Positivism, Emergent And Triumphant, Vincent A. Wellman

Michigan Law Review

Positivism is one of those words that triggers passionate and often contradictory responses. For some, positivism is a pejorative. Lon Fuller, perhaps more than anyone, charged that positivism was confused about the nature of law, blind to law's inherent morality, and morally corrupting to boot. He even suggested, in different ways, that positivism helped promote the rise of fascism in Europe. Others, in contrast, have treated positivism as a modest and undeniable truth about law. Law, they argued, is morally fallible, and accordingly, the existence and validity of law is a matter of social fact rather than moral necessity. H.L.A. …

The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White

Michigan Law Review

As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the …

Moral Foundations Of Constitutional Thought: Current Problems, Augustinian Prospects, Arthur J. Burke

Michigan Law Review

A Review of Moral Foundations of Constitutional Thought: Current Problems, Augustinian Prospects by Graham Walker

Equal Protection, Class Legislation, And Sex Discrimination: One Small Cheer For Mr. Herbert Spencer's Social Statics, Mark G. Yudof

Michigan Law Review

A Review of The Fourteenth Amendment: From Political Principle to Judicial Doctrine by William E. Nelson

Critical Legal Studies, Michael F. Colosi

Michigan Law Review

A Review of Critical Legal Studies by Allan C. Hutchinson

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Michigan Law Review

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, …

Legal Realism At Yale, 1927-1960, Karin M. Wentz

Michigan Law Review

A Review of Legal Realism at Yale, 1927-1960 by Laura Kalman

One Philosophy For An American Revolution, Paul K. Conkin

Michigan Law Review

A Review of The Philosophy of the American Revolution by Morton White

The Comity Doctrine, Hessel E. Yntema

Michigan Law Review

The doctrine of comity, as developed in the Netherlands during the last quarter of the Seventeenth Century, for the first time posed in stark simplicity the basic dilemma of conflicts law in modem times to mediate between the pretensions of territorial sovereignty and the needs of international commerce. As Ulrik Huber, the most influential exponent of the doctrine, observed: "Exempla, quibus utemur, ad juris privati species maxime quidem pertinebunt, sed judicium de illis unice juris publici rationibus constat, & exinde definiri debent.'' ["The examples which we shall use belong principally to the category of private law but their treatment …

Haines: The Revival Of Natural Law Concepts, Edwin W. Tucker

Michigan Law Review

A Review of The Revival of Natural Law Concepts by Charles Grove Haines

Hurst: Law And Social Process In United States History, Robert S. Hunt

Michigan Law Review

A Review of Law and Social Process in United States History. By James Willard Hurst.

Chinese Communist Law: Its Background And Development, Luke T. Lee

Michigan Law Review

It is perhaps axiomatic to state that law is more than an instrument for the settlement of disputes and punishment of wrongdoers; it is, more importantly, a reflection of the way of life and the philosophy of the people that live under it. Self-evident though the above may be, it bears repeating here, for there is a much greater need for understanding Chinese law now than ever before. China's growing ideological, political, economic, and military impact on the rest of the world would alone serve as a powerful motivation for the study of its law. Certainly, we could not even …

The Rule Of Law In Historical Perspective, W. Burnett Harvey

Michigan Law Review

Events of the past two decades have made imperative a fundamental re-examination of the basis of government and the legal order. The gross inhumanities of the German and Japanese regimes during the Second World War are fresh in our memories. In many areas of the world today, the force of law is being used for the systematic suppression of claims to freedom and human dignity. The revolutionary ferment of the post-war years has brought into existence new governments with the task of determining their fundamental orientation and the direction of their legal orders.

The Prospet Of Liberty Or The View From Saint-Remy, Ralph M. Carson

Michigan Law Review

This celebration of the first century of the Michigan Law School recalls the vain endeavor of the Holy Roman Empire to keep the craft of the law out of the Americas. Que no passasen abogados ni procuradores a las Indias was a clause inserted by the Emperor Charles V into the capitulation of 1540 with Alvar Nunez which sanctioned the exploration of the River Plate. Perhaps it was the futility of lawyers which prompted the Imperial veto. Twenty years before, when the Governor of Cuba sought to halt Cortez with decrees of outlawry from Spain, his cunning captain Sandoval evaded …

Friedrich: The Philosophy Of Law In Historical Perspective, Edgar Bodenheimer

Michigan Law Review

A Review of The Philosophy of Law in Historical Perspective. By C. J. Friedrich.

Constitutional Law - Citizenship - Power Of Congress To Effect Involuntary Expatriation, Robert J. Hoerner S.Ed.

Michigan Law Review

In four recent cases the United States Supreme Court has dealt with the power of Congress to effect the denationalization of native-born citizens without their consent. Three cases, Perez v. Brownell, Trop v. Dulles, and Mendoza-Martinez v. Mackey dealt with the constitutionality of sections 401(e), 401(g) and 401(j), respectively, of the Nationality Act of 1940. The fourth case, Nishikawa v. Dulles dealt only with the burden of proof when duress is alleged under section 401(c), but contained one opinion of constitutional significance. The purpose of this comment is to analyze and evaluate these decisions.

Comparative Legal Research, Some Remarks On "Looking Out Of The Cave", Hessel E. Yntema

Michigan Law Review

Despite this risk and without limiting discussion of comparative legal research to a Platonic theory of knowledge-to which I for one would not accede-the text prompts first the inquiry, unavoidable in a constructive discussion of the matter, whether contemporary legal study in the United States is concerned with shadows in an intellectual cave-or in other words, whether it is true, as I was told years ago, partly perhaps in jest, by a late distinguished member of the Supreme Court, then Attorney General, when, encountering me on a visit to the Department of Justice, he kindly asked what I was looking …

Lawson: A Common Lawyer Looks At The Civil Law, F. S. C. Northrop

Michigan Law Review

A Review of A Common Lawyer Looks at the Civil Law. By F. H. Lawson.

Corwin: The "Higher Law" Background Of American Constitutional Law, Charles M. Whelan S.J.

Michigan Law Review

A Review of The "Higher Law" Background of American Constitutional Law. By Edward S. Corwin.

Reuschlein: Jurisprudence-Its American Prophets., S. I. Shuman

Michigan Law Review

A Review of JURISPRUDENCE-ITS AMERICAN PROPHETS. A Survey of Taught Jurisprudence. By Harold Gill Reuschlein.

White: The Federalists, Michigan Law Review

Michigan Law Review

A Review of THE FEDERALISTS. By Leonard D. White.

Just War-A Legal Concept?, Arthur Nussbaum

Michigan Law Review

During the century preceding the First World War the topic of "just war," frequently and intensely treated in earlier periods, had almost disappeared from the writings on international relations. Since the end of the war, however, the issue has been revived by writers within and without the legal profession. The present article purports, principally by an inquiry into its historical background, to determine its legal relevance.

The Popularization Of Law, Huntington Cairns

Michigan Law Review

Law has been a major interest of the Western, and particularly the European, mind. Like physics it has provided a subject matter upon which many of the resources of the human intellect may be tested. It has yielded to many methods and, as a specialty with a circumscribed body of material, it has demanded the formulation of clear ideas so that interconnections are manifest and irrelevancies eliminated. Its great reward is the bestowal of the sense for style, which Whitehead has termed the ultimate morality of mind, and which is the product of specialization alone.

Book Reviews, Edwin W. Patterson, Edson R. Sunderland, C E. Griffin

Michigan Law Review

The title of this brilliant little volume might, more accurately, have been, "The Spirits of the Common Law," for it depicts the common law as the battleground of many conflicting spirits, from which a few relatively permanent ideas and ideals have emerged triumphant. As a whole, the book is a pluralistic-idealistic interpretation of legal history. Idealistic, because Dean Pound finds that the fundamentals of the 'common law have been shaped by ideas and ideals rather than by economic determinism or class struggle; he definitely rejects a purely economic interpretation of legal history, although he demands a sociological one (pp. io-ii). …

Book Reviews, Nathan Isaacs, Horace Lafayette Wilgus, Arthur H. Basye, Leonard D. White, Victor H. Lane, Edwin D. Dickinson

Michigan Law Review

What does a judge do when he decides a case? It would be interesting to collect the answers ranging from those furnished by primitive systems of law in which the judge was supposed to consult the gods to the ultra-modern, rather profane system described to me recently by a retrospective judge: "I make up my mind which way the case ought to be decided, and then I see if I can't get some legal ground to make it stick." Perhaps the widespread impression is the curiously erroneous one lampooned by Gnaeus Flavius (Kantorowitz). The judge is supposed to sit at …

The Law Of Reason, Fredrick Sir Pollock

Michigan Law Review

If there is one virtue that our books of authority claim for the Common Law more positively than another, it is that of being reasonable. The law is even said to be the perfection of reason. Not that the meaning of that saying is exhausted by the construction which a layman would naturally put upon it. For, as Coke had to tell King James I., much to his displeasure, there is an artificial reason of the law. Certainty is among the first objects of systematic justice. General principles being once fixed, the only way to attain certainty is to work …